DEPARTMENT OF THE NAvY 

BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 7426-17 
APR 02 2018 

Dear , 

This is in reference to your application for correction of your naval record pursuant to the 
provisions of 10 USC 1552. Your case was reconsidered in accordance with procedures that 
conform to Lipsman v. Secretary ofthe Army, 335 F. Supp. 2d 48 (D.D.C. 2004). You were 
previously denied relief on 23 May 2002, 3April 2007, and 7 November 2016. 

A three-member panel ofthe Board for Correction ofNaval Records, sitting in executive session, 
considered your application on 15 March 2018. The names and votes of the members ofthe 
panel will be furnished upon request. Your allegations of error and injustice were reviewed in 
accordance with administrative regulations and procedures applicable to the proceedings of this 
Board. Documentary material considered by the Board consisted of yolir application, together 
with all material submitted .in support thereof, relevant portions ofyour naval record and 
applicable statutes, regulations and policies. 

The Board carefully considered your arguments that your Physical Evaluation Board (PEB) 
findings are incorrect based on their determination you incurred yolir disability as a result of 
intentional misconduct or willful neglect. Unfortunately, the Board disagreed with your rationale 
for relief. You provided an Accident Investigation/Reconstruction opinion from 25 February 
2017 that opines that you were likely travelling on a motorcycle at 48 MPH around a curve rated 
for 63 MPH when your accident occurred. In addition, you provided a copy of your accident 
report from 1985. This evidence was not persuasive to the Board since it possesses two separate 
sources of your speed at the time ofyour accident that supports the PEB' s finding that you were 
injured due to intentional misconduct or willful neglect. First, as pointed out in the 23 May 2002 
decision letter of the Board, the medical board report states that you were travelling at 130 MPH 
when you lost control ofyour motorcycle. Second, even ifthe Board agrees with your assertion 
that you never told the medical board that you were travelling at that speed, you provided a 
handwritten statement on 26 December 1985 that you were travelling approximately 85 MPH at 
the time of your accident. The Board concluded you were the best source ofinformation 
regarding your actual speed at the time ofyour accident and found your statement credible since 
it was handwritten by you at a time when yo,ur memory of the event was relatively fresh in your 
mind. Considering your statement in conjunction with the 25 February 2017 opinion that the 
curve was rated for 63 MPH, the Board concluded it was reasonable to conclude that your 
accident occurred due to excessive speed and injuries that result from travelling approximately 
22 MPH over the speed limit. In the Board's opinion, this action is reasonably considered willful 
neglect. In any case, the Board also concluded that you remain ineligible for disability benefits 
regardless ofany determination involving intentional misconduct or willful neglect on your part 
since you were in an unauthorized absence status at the time ofyour accident and injury. They 
concluded conclusive evidence exists that you were in an unauthorized absence status based on 
your admission in a written statement from 26 December 1985 and a record ofabsence from 7 
October 1985 through 30 October 1985. The Board concluded, by statute, you are ineligible for 
disability benefits under Title 10, U.S. Code, Chapter 61 since your physical disability was 
incurred during a period ofunauthorized absence. Accordingly, the Board determined no error 
or injustice exists in your case. 

It is regretted that the circumstances ofyour reconsideration petition are such that favorable 
action cannot be taken again. You are entitled to have the Board reconsider its decision upon the 
submission ofnew and material evidence. New evidence is evidence not previously considered 
by the Board. In the absence of sufficient new and material evidence for reconsideration, the 
decision ofthe Board.is final, and your only recourse would be to seek relief, at no cost to the 
Board, from a court ofappropriate jurisdiction. 

It is important to keep in mind that a presumption ofregularity attaches to all official records. 
Consequently, when applying for a correction ofan official naval record, the burden is on the 
applicant to demonstrate the existence of probable material error or injustice. 

Sincerely, 


Executive Director